The Supreme Court of South Carolina
Re: Amendments to Rules of Professional Conduct, Rule 407, South Carolina Appellate Court Rules
Appellate Case No. 2018-000537
ORDER
The South Carolina Bar has filed a petition seeking to amend Rule 1.6 of the Rules of Professional Conduct (RPC), which is located in Rule 407 of the South Carolina Appellate Court Rules (SCACR). The Bar's petition seeks to amend Rule 1.6 to allow lawyers to reveal citations to published opinions without being required to obtain client consent. We decline to amend the rule as proposed by the Bar.
Instead, we amend Rule 1.6 to add a new comment to the rule reminding lawyers that Rule 1.6 requires lawyers obtain informed consent from clients before revealing information about the representation to advertise their services. The comment further clarifies this obligation applies regardless of whether any information revealed is contained in court filings or has become generally known.
Pursuant to the provisions of Article V, Section 4 of the South Carolina Constitution, Rule 1.6, RPC, Rule 407, SCACR, is amended to add new Comment 7, with the remaining comments renumbered to reflect the change. Additionally, there are minor scrivener's errors in several rules and comments as to cross-references to definitional paragraphs contained in Rule 1.0 of the Rules of Professional Conduct. The various rules and comments that contain citations to incorrect paragraphs within Rule 1.0 are also amended. These amendments, which are set forth in the attachment to this Order, are effective immediately.
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s/Donald W. Beatty C.J. s/John W. Kittredge J. s/Kaye G. Hearn J. s/John Cannon Few J. s/George C. James, Jr. J. |
Columbia, South Carolina
June 5, 2019
Rule 1.6, RPC, Rule 407, SCACR, is amended to add new Comment 7, which provides as follows, with the remaining comments renumbered to reflect the change:
[7] Disclosure of information related to the representation of a client for the purpose of marketing or advertising the lawyer's services is not impliedly authorized because the disclosure is being made to promote the lawyer or law firm rather than to carry out the representation of a client. Although other Rules govern whether and how lawyers may communicate the availability of their services, paragraph (a) requires that a lawyer obtain informed consent from a current or former client if an advertisement reveals information relating to the representation. This restriction applies regardless of whether the information is contained in court filings or has become generally known. See Comment [3]. It is important the client understand any material risks related to the lawyer revealing information when the lawyer seeks informed consent in accordance with Rule 1.0(g). A number of factors may affect a client's decision to provide informed consent, including the client's level of sophistication, the content of any lawyer advertisement and the timing of the request. General, open-ended consent is not sufficient.
Rule 1.0, RPC, Rule 407, SCACR, is amended as follows:
(1) The reference to paragraph (d) in the first sentence of Comment 2 to is amended to refer to paragraph (e).
(2) The two references to paragraph (o) in Comment 7 are amended to refer to paragraph (r).
Rule 1.10, RPC, Rule 407, SCACR, is amended as follows:
The reference to Rule 1.0(l) in Comment 4 is amended to refer to Rule 1.0(n).